Soundings

Heather Mac Donald

Big Brother HUD

Autumn 1994

This summer, the federal Department of Housing and Urban Development launched an investigation of Gramercy Park residents Dominick Crispino, Arlene Harrison, and Jack Taylor. All three were threatened with $50,000 fines; Crispino was ordered to hand over his diary and a list of all his associates. Their alleged crime: speaking out against a proposed homeless residence in their neighborhood.

In Berkeley, California, HUD similarly threatened three local activists with fines and jail terms unless they turned over the minutes of all meetings of their neighborhood coalition, the coalition's membership lists, and everything they had ever written about the homeless housing project they were opposing. Again, the only offense they allegedly committed was speaking out about an issue of local concern.

For several years, HUD has zealously pursued such claims against community groups, filed by homeless advocates under the Fair Housing Act Amendments of 1988 (FHAA). The advocates charge that organized opposition to homeless shelters, drug treatment centers, and residences for the mentally ill violates the rights of the disabled, a class that the FHAA defines to include recovering addicts, alcoholics, the mentally ill, and AIDS patientsin other words, most of the homeless population.

In investigating FHAA complaints, HUD routinely demands that neighborhood groups turn over their membership lists, files, and everything they have ever written about the contested facility. HUD has also used the threat of government-funded litigation to pressure citizens into accepting outrageous settlements. The agency has asked people to sign away their right to speak and to determine when and with whom they will meet.

Now, in response to a public outcry, HUD has issued a set of investigative guidelines intended to avoid flagrant violations of the First Amendment. But the new rules are too little, too latesuggesting that HUD's reign of terror against neighborhood activists who dissent from its housing orthodoxy may not be over yet.

The new guidelines prohibit the investigation of "public activities that are directed toward achieving action by a governmental entity or official," including distributing pamphlets, holding "open community or neighborhood meetings," testifying at public hearings, and communicating directly with officials about "official governmental matters." If an FHAA complaint alleges only such activities, HUD will reject it immediately. Nor may the agency broker settlements that require people to forfeit their free speech rights.

But some of these new protections have a hair-splitting quality that raises questions about the agency's intentions. Why, for instance, are only "open" community meetings protected? What if the officers of a neighborhood group held a private planning session? Why are only organization membership lists, fund-raising information, and financial data off limits to the agency's subpoena power? Why not correspondence and files as well?

Most troubling is the largest exception in HUD's new rules. HUD will continue to investigate groups or individuals who take their protests to court. This loophole eviscerates citizens' last line of defense against local governments that, captured by the social service industry and homeless advocates, are increasingly violating their own zoning rules regarding the siting of group homes for alcoholics, addicts, and the mentally ill.

For example, Seattle until recently prohibited the placement of social service facilities within a quarter-mile of each other. Yet in 1992, the city approved the construction of five group homes for addicts and the mentally ill within a single block. A local neighborhood group sued. HUD has been investigating the group for the past year, and nothing in the new guidelines prevents it from continuing.

As local governments, often under pressure from HUD, embrace the philosophy of placing dysfunctional individuals into stable, middle-class communities, such violations of zoning rules will only become more common. By holding open the threat of federal retaliation for challenging such zoning infractions in court, HUD is encouraging municipalities to break their own laws.

HUD's new guidelines carve out another exception that is nearly as worrisome. The rules protect only speech directed at public officials. Should citizens carry their protests beyond government agencies, they still risk HUD's heavy-handed retaliation. The Gramercy Park residents had allegedly tried to outbid a nonprofit developer for a property the developer aimed to turn into housing for the homeless mentally ill. Though the developer recently dropped his legal complaint against the neighbors, the theory that market competition may violate the FHAA remains alive under HUD's new rules.

Finally, HUD will continue to investigate individuals and organizations that protest housing decisions if "the facts available to the department do not reasonably indicate the precise applicability of the First Amendment." In other words, if an advocacy group writes a muddy enough complaint about a neighborhood organization, it can continue to draw down the government's vast coercive power until the "precise applicability of the First Amendment" is established. HUD's assurance that it will "carefully tailor" such investigations so as not to "unduly chill the exercise of free speech" is ludicrous: the very existence of such investigations, no matter how "tailored," can scare citizens into silence.

Under the new rules, HUD has dismissed only 11 of its 34 pending investigations against individuals and community groups. If President Clinton takes the First Amendment seriously, he should order Secretary Henry Cisneros to close all loopholes in the guidelines and declare that all neighborhood political activity is safe from government penalty.